Since the passage of the Fair Work Act (2009),
employers have been obliged to consider the myriad of changes
enacted by the legislation, particularly in relation to the
National Employment Standards and the expansion of the Unfair
Dismissal jurisdiction. However, it is perhaps the new General
Protections available in relation to 'adverse action' and
'workplace rights' that ought to demand the most attention
from employers. The potential for the exercise of workplace rights
to be followed by adverse action and the operation of the reverse
onus on employers means that employers need to adapt their HR
policies to avoid falling foul of these new provisions.
Under Part 3-1 of the Act, it is unlawful for an employer to
subject an employee (or prospective employee) to adverse action on
particular grounds. These grounds include personal characteristics
of the employee, absence due to illness or injury, coverage by
particular industrial instruments, or the exercise of a workplace
right. A workplace right is essentially defined as a benefit, role,
responsibility or remedy arising under a workplace instrument but
also extends to the making of a complaint or enquiry in relation to
the employee's employment. By operation of the latter workplace
right, an employee may be bestowed with additional industrial
protection if that employee makes a complaint or enquiry with their
employer in relation to his or her employment. If that employee is
then subjected to adverse action (which could include dismissal or
action falling short of dismissal such as a prejudicial alteration
to the employee's position), then that employee may be entitled
to bring a General Protections claim against the employer. The
employer then bears the onus of proof in establishing that the
action taken was not for the reason of the complaint or
What this means in practice is that an enquiry or complaint to
an employer by an employee exercising a workplace right could
operate as a pre-emptive 'shield' should the employment
relationship subsequently break down. Previously, if an employment
relationship broke down irretrievably due to an employment dispute,
an employer was entitled to invoke the doctrine of frustration and
terminate the employment with the giving of the appropriate notice
(subject to Unfair Dismissal considerations). By virtue of Part
3-1, such a termination may be unlawful if the breakdown arose due
to employer action taken following an enquiry regarding employment.
Furthermore, as any purported change to an employment position may
well have resulted in an enquiry or complaint by the employee, the
potential for these claims to arise is very real, particularly so
with respect to vocal or disgruntled employees.
The Federal Magistrates Court has recently ruled on one such
adverse action claim in the case of ALAEA v Qantas Airways Ltd
& Anor . In this case a Licensed Aircraft
Maintenance Engineer (LAME) employed by Qantas
(and a Brisbane-based member of the ALAEA) exercised workplace
rights by making enquiries with his manager regarding certain shift
allowances whilst on an overseas roster. The employee also
complained about allegedly poor assistance provided by Qantas in
relation to a health issue suffered whilst on duty overseas.
Following this enquiry and complaint, the manager was said to have
ordered the suspensions of all overseas rostering for Brisbane
LAMEs until they confirmed in writing that they agreed with their
existing shift allowances. The employee was also allegedly advised
that "the guys who accept their conditions... are the ones who
get asked to go away next time." It was held that the
suspension of overseas rostering for the Brisbane LAMEs was a
detrimental alteration of their employment terms and constituted
discrimination between them and other Qantas engineers. It was also
held that the comment constituted unlawful coercion and a threat
against the exercise of the employee's workplace rights.
Accordingly, Qantas has been ordered to pay a civil penalty under
The above case and the broad scope of the jurisdiction obliges
employers to stay abreast of developments in this new jurisdiction
to ensure that any action taken in dealing with active or vocal
employees does not give rise to adverse action claims. Carroll
& O'Dea can advise employers in relation to potential areas
of liability in this area.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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